Tuesday, December 28, 2010

Lyin', Cheatin', Lettin' the Bad Guys Go

USA Today, the newspaper for people who stay in hotels and apparently loads of others, today continues its series on misconduct among (mostly federal) prosecutors.

Today's article is about how when prosecutors get caught cheating, the guilty go free or end up serving less time than they would have had the prosecutors obtained the same convictions and sentences without cheating. See, after the misconduct is caught and the conviction reversed, the prosecutors will sometimes offer and the defendants accept plea bargains to shorter sentences.

A USA TODAY investigation has documented 201 cases since 1997 in which federal courts found that prosecutors violated laws or ethics rules. Each was so serious that judges overturned convictions, threw out charges or rebuked the prosecutors. And although the violations tainted no more than a small fraction of the tens of thousands of cases filed in federal courts each year, legal specialists who reviewed the newspaper's work said misconduct is not always uncovered, so the true extent of the problem might never be known.

USA TODAY found that in at least 48 of those cases, the defendants were convicted but, because of prosecutorial misconduct, courts gave them shorter sentences than they would have received otherwise. If prosecutors' chief motive for bending the rules is to ensure that guilty people are locked up, their actions often backfire.

48 times. Wow! The republic must be nearing its end.

Wait! 48 times? Only 48? Out of how many thousands? (As Casey Stengel used to say, "You could look it up" in the data collected by the Bureau of Justice Statistics, but there's really no point; that 48 is a teeny tiny percentage.)

The plea bargains give both sides an opportunity to cut their losses, says Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles and who reviewed USA TODAY's research.

"From the prosecutors' point of view, they just want to put that one aside and move on. That's an unpleasant memory," she says.

Curiously, it doesn't seem to dawn on anyone that the convictions may have been the product of an overzealous prosecution of an innocent person, and the "lenient" plea deals actually an unduly harsh result where an innocent took a plea of convenience to cut his losses. Not every defendant turns out to be James Strode, the bad dude.

While I appreciate that USA Today has put in a significant amount of time and effort to enlighten their readers, a segment of the public generally not receiving New York Times' home delivery, and articles like this tend to make concern over prosecutorial misconduct more palatable. But much like the earth-shattering revelation that prosecutorial misconduct happens, the force of their argument is sadly underwhelming.

To most of the public, meaning those who aren't under indictment and don't have a loved one in prison, they are more than happy to have a few of their fellow citizens take one for the team. Better that an innocent goes to prison, as long as they aren't the innocent, then someone puts a knife to their throat.

So, yeah, there's that. But we also really ought to take a look at that throw-away-bit in the article:

[T]he true extent of the problem might never be known.

Because there's a truth USA Today doesn't get at in any part of its series. Misconduct is really common. And nobody much cares. The misconduct has to be discovered. There has to be enough admissible evidence of it for a legal challenge based on the misconduct. A court has to agree that it occurred. Then a court has to agree that it was sufficiently likely to have made a difference in the outcome to order some relief for the by-now-convicted.I told, once before, Robert Sybert's story. The prosecutor, who gets the last word before the jury with a rebuttal closing argument, lied during that argument. He didn't misspeak. He didn't get his words confused. He didn't make a mistake. He told them a lie. He knew it. The judge knew it. The defense counsel and defendant knew it. The court reporter and the bailiffs knew it. Only the jury didn't know it. It was a deliberate lie. Designed to tip the scales and make the jury more likely to convict, which the jury did.The issue was presented to the court of appeals. It was in the briefs. it was the substance of oral argument. The court never addressed it in its opinion. (Sorry, no free copy available.)Let me repeat that. The court never mentioned the lying. Would it have made a difference? There's no way to know that answer. But, see, here's the thing.The prosecutor (who's now a judge, by the way), should have been called out for it. Should have been disciplined. The courts should have said something. Frankly, they should have said that a conviction obtained, even in small part, by a prosecutor who lies to the jury violates every principle of fundamental fairness and our system will not let it stand.I don't know the percentage of cases in which there is prosecutorial misconduct. I know it's a hell of a lot higher than USA Today suggests. I know it infects our system. I know that pretty much nobody gives a damn.That's the real story.USA Today has worked hard this year to tell a story of federal prosecutors who cheat and the consequence. There are some powerful anecdotes. Their series is worth reading. And it doesn't begin to get at the real story.

Useful sites

About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.